a. The Platform is offered subject to acceptance of all of the terms and conditions contained herein and all other operating rules, policies and procedures that may be published from time to time by Bearstore on bear.store in relation to the Platform. In addition, your use of the Platform and other aspects of Bearstore’s services is subject to Bearstore’s Terms of Use and Privacy Policy, (located here and here, both of which are incorporated into this Agreement by this reference). In the event of any conflict between this Agreement and any other terms and conditions you have agreed to with Bearstore, this Agreement will prevail with respect to its subject matter.
b. Your Publisher Tutorials (or any content therein) may be rejected or removed from the Platform at any time in Bearstore’s discretion; provided, however, that Bearstore will notify you of such rejection or removal immediately and, if possible, provide you with five (5) business days to cure the basis for the rejection or removal subject to Bearstore’s sole discretion.
c. You acknowledge and agree that you, not Bearstore, are responsible for the distribution of the Publisher Tutorials, and Bearstore’s activities hereunder are undertaken solely to assist you in facilitating such distribution of the Publisher Tutorials. Bearstore will notify Publishers as soon as reasonably practicable if Publisher’s access to the Platform is suspended or substantially limited due to a serious technical error.
2. Pricing and Paymentsa. You may offer your Publisher Tutorials for free, or for a subscription fee, to be determined in your discretion. If you offer your Publisher Tutorials for a subscription fee, you may not attempt to circumvent your payment obligations to Bearstore hereunder by soliciting payment from a user outside the Platform. You agree to notify Bearstore immediately if you receive any such offer or solicitation.
b. You may set the prices for your Publisher Tutorials through the Platform, and you may change the prices at your sole discretion through your Publisher account (provided no price changes shall apply retroactively). All prices will be set in U.S. Dollars.
c. You will use a third party payment processing company (“Third Party Payment Processor”) as determined by Bearstore to process payment information from subscribers to the Publisher Tutorials (“End Users”) via the Platform.
d. Subject to the terms and conditions of this Section 2, within thirty (30) days after the end of each calendar month during the term of this Agreement, you will pay Bearstore the Revenue Share (defined below) through the Third Party Payment Processor. “Net Revenue” means the amounts charged by you to End Users for the subscriptions to Publisher Tutorials purchased during a calendar month. “Revenue Share” means the percentage of Net Revenue mutually agreed to between you and Bearstore during registration of your Publisher account (which may be modified from time to time upon the parties’ mutual agreement). For clarity, the Third Party Payment Processor will pay the Revenue Share directly to Bearstore. ALL REVENUE SHARE PAYMENTS ARE NON-REFUNDABLE. If there is a payment dispute (or any other dispute) between you and an End User, you agree that Bearstore is under no obligation to become involved and that Bearstore will not be held liable for any such dispute. Any payments made to you, and any payments you make to Bearstore, will be made in U.S. Dollars.
3. SupportYou shall provide to Bearstore a current email address to which Bearstore may direct inquiries from End Users regarding your Publisher Tutorials. Bearstore retains the right, but does not have the obligation, to immediately halt the provision of Publisher Tutorials, prevent or restrict access to the Platform, or take any other action in case of technical problems, objectionable material, inaccurate listings, inappropriately categorized services, or actions otherwise prohibited by the procedures and guidelines contained on the Platform, or for any other reason in the sole and absolute discretion of Bearstore, and to correct any inaccurate listing or technical problems on the Platform.
4. Use of the Bearstore Platforma. Except for the rights expressly granted in this Agreement, Bearstore agrees that it obtains no right, title or interest from you (or your licensors) under this Agreement in or to any of the Publisher Tutorials, including any intellectual property rights which subsist in the Publisher Tutorials.
b. You agree to use the Platform only for purposes and in a manner that is permitted by (i) this Agreement and (ii) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding intellectual property and the export of data or software to and from the Czech Republic or other relevant countries). You will not use the Platform or services, to market, sell, distribute, or promote any products or services that are not Publisher Tutorials.
c. If you store personal or sensitive information provided by or collected from End Users, you must do so securely and only for as long as it is needed. You can collect, use, or delete End Users’ information at any time. You are solely responsible, however, for complying with any laws and regulations that apply to End Users’ information, including without limitation the posting of your own privacy policy on your subdomain on the Platform. Bearstore is not liable for your relationship with End Users, and Bearstore won’t provide you with any legal advice regarding such matters.
d. You agree that you will not engage in any activity with the Platform, including the development or distribution of any Publisher Tutorials, that interferes with, disrupts, damages, or accesses in an unauthorized manner the devices, servers, networks, or other properties or services of Bearstore or any third party. You will not engage in any activity that is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable.
e. You agree that you are solely responsible for (and that Bearstore has no responsibility to you or to any third party for) any Publisher Tutorials you distribute through the Platform and for the consequences of your actions (including any loss or damage which Bearstore may suffer) by doing so.
f. After Publisher provides Bearstore with written notice of an End User’s violation of Bearstore’s Terms of Use with respect to such Publisher’s Publisher Tutorials, Publisher and Bearstore must promptly determine by mutual agreement whether such End User’s access to some or all of such Publisher’s Publisher Tutorials should be suspended or terminated (but only Bearstore may decide whether End User’s access to the rest of the Services will be suspended or terminated).
5. License to Publisher Tutorials and Trademarks.You hereby grant Bearstore, during the term of this Agreement, a worldwide, nonexclusive, sublicensable, royalty-free, fully paid-up, transferable (in accordance with Section 13(a)) right and license: (a) to market your Publisher Tutorials and to permit others to use, access, and download your Publisher Tutorials through the Platform, and (b) to your tradename(s), trademark(s), and logo(s) in connection with the distribution and marketing of the Publisher Tutorials.
6. Requested Information.You will provide Bearstore with all requested data or information about you and your Publisher Tutorials (“Information”), including all payment and tax identification information, and you will ensure Information is accurate and up-to-date.
7. Representations and Warranties.By posting, uploading, inputting, providing or submitting any content to the Platform, you represent and warrant that: (a) such content (including anything within the Publisher Tutorials), and Bearstore’s distribution thereof pursuant to this Agreement, do not and will not infringe, violate, or misappropriate any law, statute, ordinance or regulation or rights of any third party; and (b) the Publisher Tutorials do not contain a virus, trojan horse, worm, time bomb, or other harmful computer code, file, or program.
8. Indemnity.You will indemnify and hold Bearstore, its parents, subsidiaries, affiliates, officers, and employees harmless (including, without limitation, from all damages, liabilities, settlements, costs and attorneys’ fees) from any claim or demand made by any third party against Bearstore due to or arising out of your access to or use of the Platform, your violation of this Agreement, or the infringement by you or any third party using your account of any intellectual property or other right of any person or entity. For avoidance of doubt, the foregoing shall include, without limitation, your obligation to indemnify Bearstore for any tax, tariff, duty, levy, assessment or withholding that may be charged to, levied against, or otherwise payable by Bearstore with respect to the subject matter of this Agreement (excluding taxes payable on Bearstore’s income).
9. De-listing Publisher Tutorials; Termination.a. This Agreement shall remain in full force and effect while you use the Platform. Subject to the terms of this Section 9, either party may terminate this Agreement at any time, for any reason or for no reason, with fifteen (15) days’ notice to the other party.
b. You may terminate this Agreement with respect to one (1) or more Publisher Tutorials offered on the Platform (i.e., “de-list” one (1) or all of your Publisher Tutorials from the Platform), upon fifteen (15) days’ notice to Bearstore. However, if you remove any purchased Publisher Tutorials from the Platform and/or stop publishing purchased Published Tutorials on the Platform before the end of every subscription term (“Subscription Term”) that has not terminated as of the de-listing date of the applicable Publisher Tutorials
c. Notwithstanding anything else herein to the contrary, Bearstore may terminate this Agreement, upon notice pursuant to Section 9(a), and/or terminate or suspend in whole or in part your access to or use of the Platform with respect to any or all Publisher Tutorials at any time, for any reason, including without limitation if you breach any of the terms or conditions of this Agreement, if your behavior or any Publisher Tutorials is offensive or unacceptable in any manner. Upon such notice and termination of your account, your right to use the Platform will immediately cease.
d. The following provisions shall survive termination of this Agreement (in whole or in part): the last sentence of Section 1(a), the last sentence of Section 4(c), Section 4(e), Sections 7 and 8, Section 9(b), and Sections 10-13 (inclusive), and any payment obligations incurred prior to the effective date of termination.
10. Disclaimer.EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, AND EACH PARTY HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
11. Limitation of Liability.NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, BEARSTORE SHALL NOT BE LIABLE OR OBLIGATED WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (A) ANY SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE REVENUE SHARE AMOUNTS PAID AND/OR PAYABLE BY YOU TO BEARSTORE HEREUNDER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE APPLICABLE CLAIM.
12. ConfidentialityYou may receive business, technical, financial, or other information, materials, and/or ideas from Bearstore during the term of this Agreement, including without limitation personal information about End Users (all of the foregoing, “Confidential Information” of Bearstore). You agree to hold in confidence and not use or disclose (except as necessary to fulfill your obligations hereunder) the Confidential Information. You understand that, pursuant to Bearstore’s Privacy Policy, Bearstore may collect and use certain data regarding End Users’ use of the Publisher Tutorials. Bearstore is under no obligation to share this data with you, but if it does, such data shall be considered Bearstore’s Confidential Information. Bearstore will share, in its sole discretion, limited amounts of information with Publisher related to the metrics of the Platform, including page views, open rates, End User counts, and referral data; such data shall be considered Bearstore’s Confidential Information.
13. Miscellaneousa. This Agreement is not assignable, transferable or sublicensable by you (by operation of law or otherwise) except with Bearstore’s prior written consent; provided, however, that you may assign this Agreement to a successor to all or substantially all of your assets or business who agrees in writing to be bound by this Agreement, provided you give Bearstore thirty (30) days prior written notice thereof. You or Bearstore may transfer, assign or delegate this Agreement and its rights and obligations without consent.
b. The parties agree that they are each independent contractors and nothing in this Agreement will be deemed to establish a joint venture, partnership, agency or employment relationship between the parties. Neither party has the right or authority to assume or create any obligation or responsibility on behalf of the other. Any notice, report, approval or consent required or permitted hereunder will be in writing. Except as otherwise set forth herein, any waivers or amendments will be effective only if made in writing and executed by both parties. If any provision of this Agreement is unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
c. This Agreement will be construed under the laws of the Czech Republic, without regard to conflicts of law provisions thereof. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in Prague, Czech Republic, using the English language in accordance with the Rules of Arbitration of the Arbitration Court attached to the Economic Chamber of the Czech Republic and Agricultural Chamber of the Czech Republic then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of arbitrators in accordance with the Rules of Arbitration. Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the courts located in Prague, Czech Republic. The prevailing party in any action or proceeding arising out of this Agreement will be entitled to an award of costs and attorneys’ fees.
d. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes all previous written and oral agreements and communications relating to the subject matter of this Agreement.